Monday, May 17, 2010

Will A Driver's License Suffice As Proof Of Citizenship In Arizona? Maybe, But Only If You're From Arizona

One of the claims being made by defenders of Arizona's police-state
immigration law is that Latino citizens won't have to carry their birth
certificate or other proof of citizenship in order to avoid arrest
should they have contact with police -- all they need to carry is their
driver's license.

Among others making this claim is the bill's co-author, State Sen. Russell Pearce, last week on Neil Cavuto's Fox News show:

Pearce: Citizens aren't required to carry any
documentation they weren't required to carry yesterday. In Arizona, if
you have a driver's license, a state ID, an identity card, that's
presumption that you're in the state legally.

Pearce is far from alone in claiming this. In his NYT op-ed on the law, Kris Kobach -- another key player in the bill's authorship -- wrote the same thing:

Because Arizona allows only lawful residents to obtain
licenses, an officer must presume that someone who produces one is
legally in the country.

The majority requests for documentation will take place
during the course of other police business such as traffic stops.
Because Arizona allows only lawful residents to obtain licenses, an
officer must presume that someone who produces one is legally in the
country.

But what if the driver of the car had shown the officer his driver's license? The
law clearly says that if someone produces a valid Arizona driver's
license, or other state-issued identification, they are presumed to be
here legally. There's no reasonable suspicion.

A PERSON IS PRESUMED TO NOT BE AN ALIEN WHO IS UNLAWFULLY
PRESENT IN THE UNITED STATES IF THE PERSON PROVIDES TO THE LAW
ENFORCEMENT OFFICER OR AGENCY ANY OF THE FOLLOWING:

1. A VALID ARIZONA DRIVER LICENSE.

2. A VALID ARIZONA NONOPERATING IDENTIFICATION LICENSE.

3. A VALID TRIBAL ENROLLMENT CARD OR OTHER FORM OF TRIBAL IDENTIFICATION.

4. IF THE ENTITY REQUIRES PROOF OF LEGAL PRESENCE IN THE UNITED
STATES BEFORE ISSUANCE, ANY VALID UNITED STATES FEDERAL, STATE OR LOCAL
GOVERNMENT ISSUED IDENTIFICATION.

But as Stephen Lemon points out, this language is actually pretty startling: You will be presumed to be an illegal alien in Arizona unless you can produce one of these four kinds of ID.

Now, I haven't been able to find anything in Arizona code requiring
citizens to carry one of these forms of ID with them at all times. But
SB1070 certainly does create that requirement. As Lemons says:

If during any police investigation, a cop has "reasonable
suspicion" to think you're in the country illegally, he or she can
presume you're an undocumented alien unless you provide one of several
forms of ID.

... Subsequently, even U.S. citizens could be held until someone from
Immigration and Customs Enforcement is called to sort them out.

Keep in mind that a cop can stop someone and begin the process during
the "enforcement of any other law or ordinance of a county, city or
town or this state." That's so broad as to include weed abatement and
barking dogs.

But this also raises a huge question: What if you're from another state? What if you're only carrying an out-of-state driver's license?

Many states refuse to require proof of citizenship when issuing
driver's licenses: they wisely understand that it's more important to
have people driving their roads with licenses and documentation than
not, and requiring citizenship papers is a good way to discourage it.

So if someone -- say, a fourth-generation Latino citizen with an
accent -- traveling through Arizona with a California or a Washington
driver's license has the misfortune to be pulled over in a traffic stop
-- or maybe just one of Sheriff Joe Arpaio's roadblocks
-- and has the similar misfortune to arouse an officer's "reasonable
suspicion" (say, he has a heavy accent or looks nervous), he could be
hauled in and arrested under SB 1070, until someone back home can fax
the birth certificate.

U.S. legal resident aliens, and especially U.S. citizens,
normally don’t carry proof of their immigration status or citizenship,
when traveling domestically. In fact, most U.S. citizens don’t even have
proof of citizenship. Fewer than 22% of Americans have passports, and
probably fewer than 30% have “certified” birth certificates. Most
Americans only have “hospital” birth certificates. U.S. Citizens could
carry their passport, passport card, certified birth certificate if born
in the U.S., or naturalization papers to prove citizenship, but that
would be a first for U.S. citizens, traveling in their own country, to
have to prove citizenship.

After reviewing the new law, and carefully considering the statements
of the law’s supporters and critics, especially if you’re a swarthy
skinned traveler in Arizona, I’d recommend you carry proof of U.S.
citizenship or legal immigration status to avoid possible detention, if
this law goes into effect.

Travel agents with whom I’ve spoken are unanimous, that if the law
goes into effect, they will add a strongly worded advisory, to all
client invoices and itineraries for travel to or through Arizona, to
carry proof of citizenship or legal immigration status.

And if you live in Arizona, I would not count on the assurances of Russell Pearce and Kris Kobach. Because a driver's license may get you off the hook -- or maybe not. It'll depend on the officer, apparently.

Sara Robinson has worked as an editor or columnist for several national magazines, on beats as varied as sports, travel, and the Olympics; and has contributed to over 80 computer games for EA, Lucasfilm, Disney, and many other companies. A native of California's High Sierra, she spent 20 years in Silicon Valley before moving to Vancouver, BC in 2004. She currently is pursuing an MS in Futures Studies at the University of Houston. You can reach her at srobinson@enginesofmischief.com.